It's in Black and White in the GAO Plum book !!
Mary Frances Berry and Victoria Wilson (holder of Peter Kirsanow's seat)
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Send Peter Kirsanow a note of encouragement!
1) The original enabling legislation specifically called for replacement appointments to fulfill the unexpired term. The intent of this is clear that the Commission is to be contiguous, and not turned over with a change of administration. The amending legislation did nothing to change this, and is silent on how unexpired terms are filled.
2) All previous unexpired terms have been filled by temporary appointments to the end of the term.
3) This particular appointment was specifically made to the end of the unexpired term and had a specific termination date.
It seems that Ms. Berry's case is that President Clinton had no authority to appoint a commissioner to anything less than a six year term. But this assertion flies in the face of the original legislation and all precedence since then. Furthermore, this position invites the political stacking of the Commission by having mass resignation of all sympathetic members at the end of an Administration, so they can be re-appointed to six-year terms, which would deny the subsequent administration any right to appoint these seats.
Anyway you stack it up, this case seems like a loser for Ms. Berry in any court except for the court of public opinion. IMHO, it's a loser there, too.
But I'm not a lawyer. Can anybody explain how this woman has a case?
It's in Black and White in the GAO Plum book !!
Mary Frances Berry and Victoria Wilson (holder of Peter Kirsanow's seat)
|
Send Peter Kirsanow a note of encouragement!
Berry is nothing more than the article states - a bully.
She just dares someone to have the courage to put her in her place - the unemployment line!!
I hope President Bush has the courage to do this.
The new legislation left the vacancy section out. Unless it can be shown that congressional intent was to keep it the same then Berry has good case. How would you like it if every time you looked up a law and read it at its face value you couldn't be certain if that was what was meant by it ? The courts will take the plain written meaning unless it can be shown that that was not congressional intent. It is not uncommon for the SC to rule this way when the law says one thing even when its fairly clear what congress meant.
2) All previous unexpired terms have been filled by temporary appointments to the end of the term.
Granted but working for Berry's interpretation is that this is the first to occur after this changed 1994 law was written.
3) This particular appointment was specifically made to the end of the unexpired term and had a specific termination date.It seems that Ms. Berry's case is that President Clinton had no authority to appoint a commissioner to anything less than a six year term. But this assertion flies in the face of the original legislation and all precedence since then.
But the key question will be congressional intent. Did they just screw up in 1994 or was this change deliberate ? Now that its discovered how come there is no bill to clarify it ?
Furthermore, this position invites the political stacking of the Commission by having mass resignation of all sympathetic members at the end of an Administration, so they can be re-appointed to six-year terms, which would deny the subsequent administration any right to appoint these seats.
I don't see how this works yet. First they must maintain a balance in parties, second the house and senate can do same thing, third congress could change law or refuse to fund.
Anyway you stack it up, this case seems like a loser for Ms. Berry in any court except for the court of public opinion. IMHO, it's a loser there, too
Anyway you stack it up it shows the GOP arguing as hypocrits (barring clear demonstration of congressional intent). We either believe SHALL means must or we don't. I can just see replays of prominent GOP'ers in Florida arguing the same as Ms. Berry being played by Peter Jennings.